Updated October 8, 2026. Quick answer: No. Massachusetts is a common law state. At divorce the court “may assign to either husband or wife all or any part” of the estate of the other (M.G.L. c. 208, section 34), and a surviving spouse can waive the will for a statutory share. The IRS lists nine community property states.
Massachusetts community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | The court may assign all or any part of the estate of the other spouse after weighing listed factors (c. 208, section 34) |
| At a spouse’s death | A surviving spouse who waives the will takes one-third of the personal and real property if there is issue, but only $25,000 of the share outright; above that the survivor gets only the income for life (c. 191, section 15) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | Massachusetts General Court; IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the Massachusetts statutes say
Section 34 does not use the words community property, marital property, equal or equitable. It tells the court that it “shall consider the length of the marriage, the conduct of the parties” and the other listed factors, and it reaches a divorce “adjudged in this commonwealth or another jurisdiction” where the court has jurisdiction over both parties.
At divorce in Massachusetts
The assignment is the court’s, on the factors; no formula or presumption of equal division appears in the section.
At a spouse’s death in Massachusetts
M.G.L. c. 191, section 15 lets the survivor waive the will within six months after probate. If the deceased left issue, the survivor “he or she shall thereupon take one third of the personal” and one third of the real property; if there are kindred but no issue, the survivor takes “twenty-five thousand dollars and one half of the remaining personal” property. In either case the share passes outright only up to $25,000: above that amount the survivor “shall receive, in addition to that amount, only the income during his or her life of the excess”, with the personal property held in trust and the real property held for life. Only when the deceased left no issue or kindred does the survivor take $25,000 and one half of the rest absolutely.
What it does to basis when the first spouse dies
Because Massachusetts is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.
Computed illustration, not tax advice: suppose a Massachusetts couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.
What the documents do not say
- The Uniform Probate Code elective-share sections 2-201 to 2-299 of chapter 190B show as Reserved, so chapter 191, section 15 is the operative rule read. How the section treats a couple who moved to Massachusetts was not found.
Common mistakes
- Assuming Massachusetts follows the Uniform Probate Code elective share; the archived sections 2-201 to 2-299 are marked Reserved.
- Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.
Related: community property states by state, why only half steps up in a common law state, Massachusetts retirement taxes, and Massachusetts probate cost.
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Answer againSources
- Section 34: Alimony or assignment of estate; determination of amount; health insurance (M.G.L. c.208): https://malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter208/Section34
- Section 15: Filing of waiver; rights upon waiver (M.G.L. c.191): https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter191/Section15
- Section 2-201 to 2-299: Reserved (M.G.L. c.190B): https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B/Section2-201%20to%202-299
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.